A wall-to-wall inspection at a petrochemical manufacturing plant could last days, if not months, requiring multiple compliance officers and specialists.

Historically, OSHA operated under the assumption that more inspections are better. OSHA’s philosophy was that the more workplaces that the agency was able to inspect, the greater the impact OSHA would have on safety and health, and the more employees it would be able to protect.

At the end of every year, the national office would produce data and graphs showing the number of inspections, and gave no consideration for the different types of inspections or the range of complexity of the issues faced in each inspection.

It was the classic quota protocol with the classic weaknesses that quotas cause—driving enforcement to the simplest, quickest-hitting inspections available.

The Traditional System

A traditional inspection at a small construction site can last as little as a couple of hours with only one compliance safety and health officer (CSHO). A wall-to-wall inspection at a petrochemical manufacturing plant, however, could last days, if not months, requiring multiple compliance officers and specialists.

Under OSHA’s historical tracking system, both of those types of inspections were counted as the same unit of measure: one inspection. To account for this wide variation in resources that inspections can consume, in personnel and man-hours, OSHA has adopted the new Enforcement Weighting System.

The New System

The new tracking system kicked in at the start of the new federal fiscal year. OSHA piloted the system over the two previous fiscal years.

At the core of the new Enforcement Weighting System is the introduction of a new unit of measure for inspections: the Enforcement Unit.

The new Enforcement Weighting System is designed to encourage OSHA enforcement staff to pursue the more time- and resource-intensive inspections.

Different types of inspections are assigned a different number of Enforcement Units. For example, the simple, small construction site inspection would be assigned a single Enforcement Unit, whereas the wall-to-wall chemical facility inspection would receive seven Enforcement Units.

Enforcement Units will be the new metric that OSHA’s national office evaluates at the end of the fiscal year and tracks from year-to-year to evaluate enforcement performance of its various regions and area offices.

Time- and Resource-Intensive Inspections

Dr. David Michaels, Assistant Secretary of Labor for OSHA, explained in the Memorandum announcing the Enforcement Weighting System late last year: “While [the old] metric served a useful purpose, it penalized those field managers that took on more complex inspections that require a great amount of CSHO effort.”

The new Enforcement Weighting System is designed to encourage OSHA enforcement staff to pursue the more time- and resource-intensive inspections.

The Enforcement Unit assignment puts a premium on process safety management inspections (the standard intended to prevent catastrophic explosions at refineries and chemical plants) by assigning seven Enforcement Units to those inspections.

There are also a host of health hazards that have to be enforced under OSHA’s catch-all General Duty Clause that will get more attention because of the new weighting system; e.g., OSHA assigns five EUs to inspections targeting ergonomics.

The Weighting System

Here is the full Enforcement Unit Chart:

As you can see, more than any specific hazard, OSHA rewards area offices for finding ways to drive up civil penalties. Specifically, the one “category of activity” to which OSHA assigns the most EUs is enforcement actions with a total penalty exceeding $100,000.

That means that a run-of-the-mill employee informal complaint inspection about a basic safety hazard would only be worth 1/9th of an EU. However, if the CSHO and area director can conceive of a way to characterize a couple otherwise minor items as Willful or Repeat, an inspection that would not be worth much to that area office’s annual quota gets a huge boost, almost 10 times more EUs by pushing the penalty up over $100,000—a potentially costly, perverse incentive.

By announcing this new protocol, Michaels believes that these hazards, which have historically been addressed by OSHA inspections less frequently, will get more attention from employers.

In other words, employers who may have dismissed these hazards, believing an inspection by OSHA was unlikely because such an inspection was too time consuming, will now take steps to address those hazards recognizing that an inspection may be more likely.

That population of employers was likely slim to none, but regardless, employers should pay particular attention to the hazards to which OSHA will now assign more enforcement resources.

ABOUT THE BLOGGER

Eric J. Conn

Eric J. Conn is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Group. His practice focuses exclusively on issues involving occupational safety and health law. OSHA Watch offers general information but should not be construed as legal advice. Employers are always advised to seek appropriate counsel for individual issues. Contact Eric.

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